In determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences against the
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176
(1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its
burden, the burden shifts to the nonmoving party to come forward with
"specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment
is sought, if there is any evidence in the record from any source from
which a reasonable inference could be drawn in favor of the nonmoving
party, summary judgment is improper. See Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 37 (2d Cir. 1994).

II.

The following facts are not in dispute, except where noted. Plaintiff
Robin Cowan was at all relevant times an Assistant District Attorney
("ADA") employed by the District Attorney of Bronx County. Plaintiff Cary
L. Cowan is the father of Robin Cowan. Defendant Ernest Codelia, P.C., is
a professional corporation authorized to practice law in the State of New
York. Defendants Tauber, Shipman and Codelia are attorneys, licensed to
practice law in the State of New York, and are employees of Ernest
Codelia, P.C. (Compl. ¶¶ 7-11; Defs.' 56.1 St. ¶¶ 7-8, 11.)

Robin Cowan was the ADA assigned to prosecute a murder case, People v.
Angel Lopez, Indictment No. 1877/96 ("Lopez case"). Ernest Codelia, P.C.
represented, Angel Lopez ("Lopez"), the defendant in that action.
Defendants Tauber, Shipman and Codelia each took part in Lopez's
defense. (Compl. ¶¶ 12-14, 16; Defs.' 56.1 St. ¶¶ 9-11.) Tauber
testified at a suppression hearing in the Lopez case as a witness on
behalf of Lopez and was cross examined by Ms. Cowan. (Compl. ¶ 16.)

The plaintiffs allege that on or about March 13, 1998 to March 24,
1998, Tauber directed TML Information Systems, Inc., to perform several
computerized searches of DMV records for motor vehicle records of Robin
Cowan and Cary L. Cowan, including their residential street addresses,
the plaintiffs' dates of birth, and other personal information. (Pls.'
56.1 Counter-St. ¶ 19; Compl. ¶¶ 17-19; 38). The plaintiffs
contend that Tauber's initiation of the searches at issue was done as a
joint effort of all the defendants. (Pls.' 56.1 Counter-St. ¶ 1.)

Ms. Cowan allegedly immediately called Tauber to determine whether he
had mailed the empty envelope, and if so, why. (Compl. ¶ 27.) The
plaintiffs allege that, at that time, Tauber advised Ms. Cowan that he
wanted to determine if Ms. Cowan really lived in New York City and that
Tauber also indicated he had done so to "pay her back" for having
vigorously cross-examined Tauber when he testified at the suppression
hearing in the Lopez case. (Compl. ¶¶ 28-29.) Although the defendants
do not dispute that Tauber caused a search to be made of the DMV
records, they contend that Tauber caused the search to be made to confirm
whether or not Robin Cowan was a bona fide resident of the City of New
York. (Defs.' 56.1 St. ¶ 18.) The defendants argue that N.Y. Public
Officers Law § 3 requires that Bronx ADAs reside within the City of
New York and that, in the absence of compliance with that law, an ADA is
not qualified to serve and may be removed. (Defs.' 56.1 St. ¶¶
13-14.)

Ms. Cowan notified her supervisor, Edward Friedenthal, and he in turn
reported the incident to Justice Bamberger, who was presiding over the
Lopez case. (Compl. ¶ 31; Defs.' 56.1 St. ¶ 20.) A disciplinary
proceeding before the New York State Supreme Court, Appellate Division,
First Department Departmental Disciplinary Committee ("Departmental
Disciplinary Committee") was initiated against Tauber on the basis of the
incident. (Defs.' 56.1 St. ¶ 20; Pls.' 56.1 Counter-St. ¶ 20.)
After holding a series of hearings on the matter, the referee appointed
to review the allegations credited Tauber's account and recommended that
the charges be dismissed. See In the Matter of William Tauber, Esq., RP
No. 7006/99, Report of Referee (N.Y.App.Div. July 12, 1999). A hearing
panel of the Departmental Disciplinary Committee concurred in the
referee's determination that the charges should be dismissed. See In the
Matter of William Tauber, Esq., RP No. 3006/99,*fn1 Determination of
Hearing Panel (N.Y.App.Div. Aug. 11, 1999) (Both decisions are attached
as Ex. D of Affirmation of Roberto Lebron dated October 4, 2000 ("Lebron
Aff.")).

The plaintiffs filed this action on August 5, 1998 asserting two causes
of action. In the plaintiffs' first cause of action, the Cowans allege
that the defendants violated the DPPA. (Compl. ¶¶ 12-44.) In the
second cause of action, plaintiff Robin Cowan alleged that the defendants
engaged in outrageous conduct causing emotional distress. (Compl. ¶¶
45-54). On March 16, 1999, plaintiff Robin Cowan filed an action in New
York State Supreme Court, New York County, against the same defendants
also alleging outrageous conduct causing emotional distress ("State Court
Action"). (Defs.' 56.1 St. ¶ 3 & Ex. B.) The State Court Action
was dismissed by orders dated June 30 and July 31, 2000, and judgment was
entered on ...

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